The prison governor, the notice and the question of compensation Christmas is coming, the geese are getting fat, Please to put a penny in the old man's hat; If you haven't got a penny, a ha'penny will do, If you haven't got a ha'penny, God bless you.                                    Beggar's Rhyme -- Traditional 22 December 2002;  revised 10 March 2003 QUITE WHEN THE Beggar's Rhyme was first written - or spoken - is lost in the mists of time. But it would be generally agreed that these days a penny or a halfpenny would not go very far towards solving the problems of anyone who is financially disadvantaged. How much more generous it would be, and how much more in keeping with the modern Christmas spirit, if what was in question was the prospect of tens of thousands of pounds. Or even of a hundred thousand pounds. As Christmas approached in December 2002 perhaps it was such thoughts as these which moved the governor of Wakefield Prison, a high security prison in the north of England, often considered a model of good practice, to post the following announcement on noticeboards throughout the establishment: _______________________________________________________________________ NOTICE TO PRISONERS Ref. No.: 78/2002 Subject: Tennal Assessment Centre, Birmingham Originating Department: Health Care Text: Would any prisoner who lived at Tennal Assessment Centre and Community Home during the 1960s, 1970s or 1980s, who wishes to join a group compensation action against the Home, contact Richard Scorer, Molly Whittal or Suzanne Heald at Pannone and Partners, Solicitors, 123 Deansgate, Manchester, M3 2BU. Any prisoner who is uncertain over what to do can apply to the Senior Medical Officer. Signed: J. Slater, Governor Date: 5 December 2002 _______________________________________________________________________ If a prison governor were to post a notice offering payouts of between £20,000 and £100,000 to any prisoner who came forward with a false allegation against a former member of staff at Tennal Assessment Centre, it would immediately be regarded as a major national scandal. Yet for some innocent care workers the effect of what the Wakefield governor has now done may be little different. It will be scant consolation for them that his notice also holds out the prospect of financial rewards for making true allegations.  Of course nobody is suggesting that no abuse ever took place at the Tennal home. In October 2002 one man pleaded guilty to sexually abusing a number of young boys who had been in his care there. Another man has also pleaded guilty. However, two former care workers who have been convicted in relation to similar offences at the home both pleaded 'not guilty'. In October 2001 one of them, an 82-year-old pensioner, sat in a wheel-chair in the dock, incontinent and suffering from the early stages of Alzheimer's, as he was sentenced to eight years in prison. Because he died in prison shortly afterwards, the full facts of his case may never be known. But there are many indications that Eugene Devoti, who had stood trial with him, and faced similar allegations, was entirely innocent. Wherever the truth may lie, there can, in the present climate, be little doubt that a significant proportion of the allegations against all four men were false; the nature of police trawling operations has a tendency to ensure that even those care workers who are genuinely guilty end up facing a significant proportion of false allegations. By posting the notices he has, the governor of Wakefield prison may well add to the sum total of false allegations. He may even be responsible for bringing more innocent care workers, who have yet to be accused by anybody, into the firing-line. The notices, which he no doubt put up with the best of intentions, should therefore be taken down immediately. It is not for the prison service to display free advertisements on behalf of private firms of solicitors who are seeking to publicise group actions relating to allegations of sexual abuse. It is certainly not for prison governors to do anything which might result in yet more innocent men being sent to prisons which, as we know too well, are already over-crowded.    THE QUESTION OF WHETHER multi-party actions of this kind should be advertised at all is, given the rules which currently govern such civil actions, a more difficult one. This is principally because there can be occasions when solicitors are actually compelled to ‘advertise’. Many group actions are subject to a Group Litigation Order made by the Lord Chief Justice. When making such an order the Court is not obliged to direct that an action should be publicised but it does have a discretion to do so. (Civil Procedure Rules 1998, Part 19.11). It is often suggested that one of the purposes of making such an order is to ensure that nobody who has a legitimate claim should miss the opportunity to obtain compensation simply because they are unaware that a group action is in progress. However, since the Court has the power to admit new claims after the formal ‘cut-off’ date has passed, and since it would be theoretically possible for a new and separate action to be started at a later date, this is not the complete explanation. It seems that the rationale for the rule is a managerial one and that it seeks to render group-claims more efficient and more economical by attempting to ensure that all the sheep are led by one shepherd into one pen. This certainly is the view adopted in the authoritative commentary offered on this portion of the Civil Procedure Rules in the White Book:   Rule 19.11 (3) (c) and the practice direction (paragraph 11) cover publicising a Group Litigation Order. The intention is to enable the court to order the solicitors for the group to ‘advertise’ the making of the order and any cut-off dates for joining the register to minimize the risk of individuals trying to start their own separate proceedings at a later date. But neither the rule nor the practice direction give guidance on the form of any publicity, or on who might be ordered to pay the costs of placing the appropriate advertisements.   Since in practice it may be difficult for individuals, or small groups of litigants, to obtain sufficient public funding to make an action viable at a point after a large group action has already gone through the courts, the cut-off dates set by a court for entry into a group action are significant and publicising them may seem to be justified on these grounds. If the court has itself made a specific order which directs that an action must be publicised any criticism which is to be made in these circumstances should be directed primarily at the court which makes the order, or the Civil Procedure Rules which permit it to do so, and not at the firm of solicitors which carries it out.  (Criticism might be made of solicitors for the manner in which publicity is handled but it would clearly not be fair to criticise them simply for complying with an order they have no power to waive.) In the case of the Tennal action, however, there was no direction by the court to publicise the case. Pannone and Partners, who took exception to an earlier version of this article, clearly believe that they acted responsibly by requesting the Governor of Wakefield Prison (and presumably other prison governors elsewhere) to bring the group action to the attention of prisoners. They have said that they considered that they ‘had a duty to draw this deadline to the attention of all or any who may have harboured a wish to pursue such proceedings.   Indeed, we would have been open to criticism at a later date had we, as solicitors acting in this matter, not taken reasonable steps to bring this deadline to the attention of the class of individuals who might be affected by it.’ They say that had they not acted as they did, they would, in effect, ‘be responsible for depriving those who might have had a claim but were unaware of the deadline of the possibility of bringing proceedings against Tennal.’ This argument clearly has some force. As has already been acknowledged, it is entirely possible that the notice posted by the Governor of Wakefield did bring the Tennal action to the attention of some prisoners who genuinely had been abused while at the Assessment Centre and who therefore have a legitimate entitlement to seek compensation. Moreover Pannone and Partners may well be  right when they say that, had they not acted in this way, they would be open to criticism at a later date. Such criticism might be made against them, for instance, by potential claimants who had not been informed of the action, or by organisations representing their interests. Whether such criticism would in the end be justified is another matter.   The argument is certainly not one that applies to all cases, for, as has already been noted, cut-off dates are by no means always, as their name suggests, final deadlines. It is a matter of some interest that the website of the specialist firm of solicitors headed by solicitor Peter Garsden lists a number of group actions where cut-off dates passed as long ago as May 1999.  In several of these cases, however, it is specifically indicated that ‘new cases are always considered’. What some firms of solicitors seem reluctant to recognise is that if they do publicise such actions in the absence of a court direction to do so they are open to legitimate criticism of a quite different kind from that which might be made by potential claimants. Indeed, some of the dangers of advertising cut-off dates emerge quite clearly from the report prepared by Lord Woolf, the present Lord Chief Justice, on the civil justice system in 1996. In his final report, Access to Justice,  Lord Woolf  devoted an entire chapter to multi-party actions and on the need to redraft the rules which then applied to such actions. While recognising that there was sometimes a need both to set cut-off dates for joining group actions and to publicise these, he also pointed to the arguments against doing this in certain cases. At one point he notes that ‘The desire of defendants to know the scale of the action they face leads to the setting of cut-off dates which in turn can cause the swamping of valid claims with weak or hopeless claims’ (17.11). Expanding this point he notes that ‘early cut-off dates tend to result in a rush to register which encourages many weak or hopeless claims to be registered and inflates the pool of potential claimants. The bandwagon effect may raise unrealistic hopes of compensation from claimants (17.44) He also notes that in certain kinds of action there tends to be a high proportion of doubtful claims: ‘the bandwagon effect, in cases such as benzodiazepine, has the effect of swamping stronger claims with a host of weaker claims, many of them with very questionable foundation, and making the action as a whole unviable.’ (17:52, Woolf Report) Lord Woolf is clearly concerned that cut-off dates and the publicising of cut-off dates, which are designed to make the administration of justice more efficient, can in some cases have the effect of encouraging fabricated or doubtful claims which undermine the quest for justice. It is precisely because such concerns are evidently well-founded that any firm of solicitors might be expected, wherever they have the freedom to do so, to exercise extreme caution when considering whether to publicise group actions which relate to alleged acts of sexual and physical abuse many years ago. Whereas many group actions (such as, for example, those which related to thalidomide) are fought on behalf of people whose status as victims is clear and objectively verifiable, claims involving ‘historical abuse’ are of a quite different order. In such cases there is usually no objective evidence at all that complainants have suffered the abuse they allege; usually the only form of strong corroboration for such claims (which is itself often not available, and which is also not always reliable) is found in the confessions or guilty pleas of those who are accused of perpetrating the abuse. Because of the lack of any objective test, it is extremely difficult either for the solicitors acting in a group action, or for the Legal Service Commission officers who are responsible for allocating funding to them, to reliably filter out false claims. Psychological reports, although sometimes credited with this role, certainly do not in practice fulfil it. Medical reports based on vaginal or anal examination are usually irrelevant to such long-delayed allegations. Given that, for all these reasons, the gates of the civil courts are already wide open to fabricated claims in such cases, it might well be argued that any firm of solicitors which was acting responsibly should refrain from any action which might conceivably encourage more false claims. There is certainly a powerful argument for deciding that group actions concerning allegations of abuse should never be advertised. There is a specially strong case for not advertising them in prisons where it is widely recognised that there is a strong compensation culture and where dishonesty and fabrication are, for reasons which should be obvious, particularly prevalent. BY DECEMBER 2002 when the notice about Tennal was first posted by the Governor of Wakefield Prison, this argument had already been significantly strengthened by the publication, only a month or so previously, of the report of the Home Affairs Committee on the Conduct of Investigations into Past Cases of Abuse in Children’s Homes (HMSO, 31 October, 2002). After referring to the evidence which had been given to them on such matters, the Committee said this in their report: The risk that the prospect of compensation might induce some individuals to give untruthful evidence is said to be compounded by a number of factors. First, the almost open invitation, given by the police during a trawl, to make an allegation of past abuse. Secondly, the advertisement by solicitors of civil compensation actions and awards. Thirdly, the working relationship that has been established between certain firms of personal injury solicitors and police forces. Finally, the conduct of group litigation, in civil compensation actions, is said to leave little opportunity for scrutiny in each individual case (Paragraph 101).  The committee went on to make it clear that they regarded the risk of compensation-induced false allegations as a real one. After criticising the ruling in a recent case (Lister v Hesley Hall Ltd) they said:   … we believe that by opening the door to ‘no fault’ liability in civil compensation actions, the ruling may further encourage unscrupulous individuals to make false allegations, in the hope of receiving substantial awards of financial compensation (Paragraph 120). During one of the evidence sessions Bridget Prentice MP specifically raised the issue which would surface a month later in Wakefield:   We have had evidence that suggests that solicitors advertise civil actions in prison, even in the prison magazine …I have strong views on these compensation things. Do you think there is anything the Government, the Lord Chancellor's Department or someone should be doing about that type of advertising? Or the Law Society? Whoever? (Tuesday 14 May 1990)  As very many observers are, this MP was clearly horrified by the very possibility that such advertising might be conducted in prisons. She would almost certainly have been even more shocked had she been aware that the Governor of a prison might himself post such advertisements on the prison noticeboard. In view of such clear expressions of dismay and concern at the practice, it might seem remarkable to many that this practice should continue apparently unchecked after the appearance of the Home Affairs Committee report. While solicitors must bear some responsibility for this, it would be quite wrong, I believe, to expect them to shoulder all the blame, or even the major part of it. In the first place it is quite clear that it is not they but the civil courts who have created a culture in which the advertising of group actions and the availability of compensation is regarded as being both normal and generally desirable. The proper caution expressed by Lord Woolf in parts of his report was perhaps never given the kind of prominence it merited and it certainly has not been embodied in the rules which have subsequently been put in place.    ONE OF THE FACTORS which can only exacerbate the problem is the manner in which solicitors conducting group actions are remunerated. Because they are paid for each individual client they represent, it is clearly in their interests to find as many new clients as they are able to. The system of legal aid currently in place means that solicitors fund their work in the pre-trial or pre-settlement phase of the case through certificates issued to them by the Legal Services Commission in relation to cases which are judged as having merit. These certificates in effect underwrite the expenses which the claimants’ solicitors incur while preparing the action and guarantee that they will at least receive some payment at the conclusion of the action even if it is not ultimately successful. In some cases interim payments are actually advanced to solicitors before the case has in fact been settled.   Initial certificates in respect of each client may be in the region of £2,500. Subsequent awards mean, according to the Legal Services Commission which manages such actions, that the total public funding available per client may in some cases be £10,000 or even more. Whereas an action involving merely four claimants may  result in funding totalling between £20,000 and £40,000, a single action involving 50 claimants could lead to total legal aid funding for the solicitors involved of a quarter of a million – or even half a million pounds.     Some firms have even begun to specialise in dealing with allegations of abuse. Peter Garsden, is a Cheshire-based solicitor who specialises in obtaining compensation in  ‘historical’ sexual abuse cases. He runs the largest specialist department dealing with such claims in the country. It is currently co-ordinating some 800 different individual cases, half of which are being dealt with directly by the firm itself. In this case the legal aid funding apportioned to a single firm will almost inevitably run to several million pounds.   This, however, is by no means the whole story. It is true that, if none of the cases resulted in a settlement, then the remuneration of the solicitors in question would effectively be capped at the amount set by the Legal Services Commission. The entire litigation process would then be paid for out of public funds.   However, in the event that a settlement is reached, either by negotiation or by a decision of the court, the charge for the solicitors’ costs would then become payable by the defendants in the action. Any funding which had been received in the form of interim payments of legal aid would be returned by the solicitors who had received them to the Legal Services Commission. The entire fees and costs for the action would then be effectively re-invoiced to the defendants.   The work would not, though, be invoiced at the same hourly rate that had been applied by the Legal Services Commission in calculating the amount of public funding available for each case. It would instead generally be re-invoiced at a much higher hourly rate. Peter Garsden made this quite clear when he gave evidence to the House of Commons Home Affairs Committee in June 2002. He was quizzed by members of the Committee about his firm’s website and on the fact that it contained the following statement about the manner in which his firm had expanded: There is undoubtedly investment in the future in that when these actions are successful and costs are settled, the mark-ups we will be requesting are considerable . . . He explained that what was meant by this was that, because the work he was engaged in was difficult and responsible, he and his firm would be entitled to charge for it at a higher rate than they would charge for other kinds of legal work: I am talking about the fact these cases carry with them an extra degree of responsibility both to the victim, to the expert, to the court, and in every other way they are very difficult and very responsible types of cases. It is very difficult to find people who do that type of work. Because the degree of responsibility and the amount of care required is greater, we are entitled to be paid more money for it (436). One solicitor who acts for defendants in these actions has said that the mark-up applied to the standard legal aid rate can be as high as 150%  and that in some very exceptional cases, where the issue has gone to trial, legal costs can amount to as much as £100,000 for an individual case. Most cases result in much lower legal costs than this but the same solicitor generally advises defendants in such actions to allow, on average, £25,000 per individual claimant. Since this figure would include barristers’ fees and other costs, it should certainly not be taken to represent the total  remuneration paid to the solicitor. But this figure will clearly remain a substantial one. However, even at this stage, the figure would not necessarily be the final one. In the course of negotiating settlement the defendants’ solicitors might contest aspects of the costs claimed, including the mark-up which had been applied. If the claimants’ solicitors, in calculating their costs, arrived at a higher figure than that eventually agreed in the terms of settlement with the defendants, this would not inevitably mean a reduction in their final receipts. In some cases at least the difference between what they asked for and what they had been paid might be made up by the solicitors taking this money from the damages awarded to the individual claimants. As Peter Garsden put it in his evidence to the Home Affairs Committee: If there is any shortfall between the amount of costs I have incurred and the amount I am paid by the defendant, the shortfall is made up out of the claimants’ damages …  Garsden immediately added: ‘though we try very hard not to do that and it is more or less a policy decision that we do not do it, we would have to stand the loss’ (553)    In theory, however, it seems clear from his evidence that precisely this option remains open. Even without allowing for such a final adjustment, under which solicitors would be paid in part out of damages awarded to their clients, one solicitor who represents defendants in these cases has observed that lawyers sometimes receive twice as much money in costs as the clients they represent receive in damages.   PERHAPS THE SINGLE MOST  important factor, however, in the system through which claimants’ solicitors in these cases are remunerated, is that there is no real financial incentive to expose false allegations. A solicitor who uncovered a fabricated allegation would either receive no legal aid at all in respect of such a claimant, or, if a certificate had already been granted, would be remunerated on the same basis as if the case had been lost. Since solicitors’ firms must, if they are to continue to serve their clients well, succeed in maintaining their own profitability, they can hardly be expected to invest the massive amount of time and money which would be required to test out claims exhaustively or to make a concerted effort to uncover allegations which are false. Given the large number of false allegations which appear now to be in circulation, any solicitors who adopted such an approach might rapidly undermine the financial viability of their departments or even, in the case of specialist ‘niche’ solicitors, of their firms. By so doing they would  actually be letting down those among their clients whose claims were genuine.   For this reason solicitors handling such claims actually find themselves ensnared within a system which is inimical to an even-handed, properly investigative approach to the very serious allegations with which they are dealing. The effects of such a system on claims in the different but related sphere of medicine and medical negligence have been trenchantly described by Dr Anthony Barton:  Most healthcare claims are legally aided because of their cost and complexity. Civil legal aid is fundamentally flawed. First, funding is granted on the advice of the applicant’s lawyer who has a financial interest in advancing the case - a clear conflict of interest creating perverse incentives to pursue unmeritorious cases. This is amply borne out by the near zero success rate in drug claims against the pharmaceutical industry, and that most clinical negligence cases fail - too often the only beneficiaries of legal aid are lawyers. Second, the usual ‘loser pays’ rule of litigation doesn't apply to an unsuccessful legally aided litigant who is in a no lose position while the defendant is in a no win position. Cases may be settled by defendants regardless of merit to avoid irrecoverable legal costs, a practice described as legal aid ‘blackmail’ in Parliament and by the Bar Council. The effect of this rule was described by the House of Lords as unfair. It also arguably infringes the right to a fair trial under Article 6 of the Human Rights Act. Furthermore, because the reasons for funding decisions are privileged and confidential, the legal aid system is unaccountable to Parliament, to the courts and to the public. Legal aid fulfils at no risk the economic aspirations of claimant lawyers who have little incentive to develop the commercial discipline imposed by conditional fee work. The continued availability of legal aid thus inhibits the growth of the conditional fee system and the widening of access to justice.    … Most litigated claims are unsustainable because legal aid is awarded with scant regard for merit. We can all reasonably wonder at the relationship between litigation, liability and compensation. For example, the benzodiazepine tranquilliser case involved thousands of claimants and cost over £40 million in legal aid without a penny obtained in compensation.                                                           Patients pay the price of litigation These words, written by a medical practitioner who is himself also a solicitor, provide an interesting critique of the effects of the current legal aid system in one particular sphere. It should be noted that what is being called into question here is not the attitude or integrity of solicitors themselves but the appropriateness of the system which has been devised to manage and reward their work. Nobody is suggesting that solicitors deliberately seek out unmeritorious cases or consciously pursue claims which they know to be false or dishonest. It is simply that the current system, in Dr Barton’s view at least, is actually designed in a manner that sometimes rewards the pursuit of claims which will eventually fail. Precisely because a very significant majority of sexual abuse cases, unlike the benzodiazepine tranquilliser cases, actually succeed, the words quoted here cannot and should not be applied directly to the manner in which this very different kind of claim is pursued. It should also be noted that Dr Barton’s analysis, like most analyses inspired by extreme economic liberalism, leaves little if any room for motivations other than the profit-motive. The problem in the sphere of sexual allegations is that the non-economic motivations of the professionals involved, which can undoubtedly be immensely powerful, far from counterbalancing the financial factors, may actually serve only to magnify their effect. Because, over the last thirty years or so, there has become established deep in our culture (and particularly among professionals) a powerful presumption of veracity in relation to almost any allegation of sexual abuse, the unmeritoriousness of some claims frequently appears to be almost completely invisible. It is invisible not only to the claimants’ own solicitors, who generally appear to believe quite sincerely in the testimony of their clients, even when it is false; it also appears to be invisible to the psychologists who frequently vouch for the claimants, to the Legal Services Commission who grant them legal aid certificates, to the courts who sometimes adjudicate their claims (though most are settled out of court), and, no less importantly, to the insurers who usually have to foot the bill for the compensation awards which are actually made. In many cases, allegations which might be exposed as untrue in the criminal courts are either accepted as true by the civil courts, or, more frequently, are not contested at all by insurance companies on the grounds that to oppose them would be bad policy or might be too expensive, or might result in unfavourable publicity. Although the presumption of veracity has been challenged more frequently in the last two years (not least by the Home Affairs Committee), it is still immensely strong. Of course it remains true that a significant proportion of the individual claims handled by solicitors are well-founded. But there is evidence which suggests that a very substantial number – perhaps far more than most laymen or lawyers would imagine – are not. By now large numbers of false claims have actually been successfully litigated and have resulted in large compensation payments. Meanwhile, in the criminal courts, similar false allegations have not always been dismissed but have sometimes led to the conviction of completely innocent men. As a result a climate of credulity has been progressively strengthened. In consequence personal injury solicitors who engage in this kind of work are not only without financial incentives to identify and reject false allegations, they are often without social or psychological incentives to do this either. It is for all these complex reasons, in which financial, psychological and cultural factors are intermeshed, that some personal injury solicitors who specialise in historical abuse appear to have developed a particular mind-set. As a result it sometimes seems that they quite genuinely cannot understand the gravely dangerous nature of the work they engage in or the huge scale on which retrospective allegations relating to care homes are currently being fabricated. In particular they cannot understand  the extent to which, by unknowingly fuelling false allegations through the successful financial claims they repeatedly make in relation to them, they have actually helped to undermine the very process of justice they sincerely believe they are upholding.     THE FACT THAT THE episode involving the posting of the Tennal notice in Wakefield prison should have taken place even after the publication of the Home Affairs Select Committee report does not, it would seem, indicate a cynical disregard for the findings of this all-party committee of MPs. It seems much more likely that it indicates the passionate sincerity with which those engaged in the business of seeking compensation on behalf of ‘survivors’ believe in their own vocation and the justice of their mission to secure compensation for those who make retrospective allegations. It is a sign of the gravity with which the Committee viewed this entire problem that in their report they made it clear that at one point during their deliberations they were attracted towards the idea of recommending that the public-funding of group claims relating to sexual abuse should be halted. They pointed out that in practice this would leave the Criminal Injuries Compensation Scheme as the sole route to compensation for most victims of abuse.  They also made it clear that one of the reasons they found this solution attractive was that ‘as the Scheme is publicly administered, the CICA does not operate to make a profit’ (paragraph 122). The clear implication of these words is that Committee felt that the profit-motive could not always be relied on to work solely for the public good and that public services are sometimes best placed in the hands of public servants who are not driven by any need to maximise profits.  (The  Committee also seek to explain the relative infrequency with which victims or alleged victims currently make claims to the CICA by saying: ‘We note in passing that there may be an element of self-interest, amongst lawyers, to generate business by encouraging complainants to lodge civil compensation claims, rather than directing them to the CICA’ (113).) However the Committee are obliged to record that, in the course of exploring this possible route to reform, they found that it might well be blocked by existing European human rights legislation which guarantees the right to a fair trial. Partly because of this they did not recommend what might have been one of the most effective solutions to a problem which seems otherwise intractable.  The episode involving the Governor of Wakefield prison and a firm of solicitors, who no doubt acted in part because of good intentions of their own, indicates just how serious that problem remains. Until the kind of advertisement posted in Wakefield prison is actually outlawed, and the entire system of multi-party actions in relation to sexual allegations is radically reformed or dismantled, it seems almost inevitable that the injustices and fabrications which that system helps to give rise to will continue. 22 December 2002;  revised 10 March 2003 …………………………………………………………………… © Richard Webster, 2002, 2003 www.richardwebster.net TOP Home Introduction Sampler Search Contact